05 Sep Turkey’s Blustery ICJ Threat
Turkey-Israel relations have hit a new low after the release of the U.N. Report on the Flotilla. Actually, Turkey seems to be the one most angry with the report, and it is taking it out on Israel, by demanding an apology and expelling Israel’s ambassador. Turkish bluster also seems to have manifested itself in an empty, meaningless threat to take the whole matter to the International Court of Justice.
Turkey is preparing to challenge Israel’s blockade on Gaza at the International Court of Justice, the foreign minister said Saturday, ratcheting up tensions between the once close allies.
Ahmet Davutoglu’s comments came a day after Turkey expelled the Israel’s ambassador and severed military ties with the country, angered over its refusal to apologize for last year’s deadly raid on a Gaza-bound aid flotilla that killed nine pro-Palestinian activists.
In an interview with Turkey’s state-run TRT television, Davutoglu dismissed a U.N. report into the raid that said Israel’s naval blockade of Gaza was a legal security measure. Davutoglu said the report — prepared by former New Zealand Prime Minister Geoffrey Palmer and former Colombian President Alvaro Uribe, and presented to U.N. Secretary-General Ban Ki-moon — was not endorsed by the United Nations and was therefore not binding.
“What is binding is the International Court of Justice,” Davutoglu said. “This is what we are saying: let the International Court of Justice decide.”
Unless there is some bilateral treaty out there I am not aware of, Israel cannot be subject to an ICJ proceeding because it has not consented to jurisdiction. So the only likely role for the ICJ here would be in an advisory opinion. Which would not be binding… Get the Turkish foreign minister a legal advisor!
Why do you say that advisory opinions are not binding? While technically they are not a ‘judgment’, they state what the law is and therefore express what the binding obligations of the subjects involved are. Thus, their content is undoubtedly binding.
In other words, for instance, the obligation of Israel to withdraw from the illegal settlements in the occupied territories is no less binding because it was stated (just) in an advisory opinion than it would have been had it been expressed in a proper judgment. Considering the lamentable lack of enforcement mechanism of ICJ judgments, there is actually no difference at all, at least when the advisory opinion merely restates what the customary or treaty obligations are…
It is pretty obvious that Turkey will have to wait for Israel’s consent for such a trial, which will never happen. Foreign Minister Davutoglu knows this, plain and simple, for he is an IR scholar himself. On a side note, Palmer Committee Report has no legal significance. It was drafted by two individuals, Uribe and Palmer, has no res judicata effect. This report is nothing but a small contribution in terms of fact-finding.
What about the 1988 SUA Convention? Turkey and Israel are both parties and there is an ICJ compromissory clause. Though I wonder whether any of the two made a reservation to it? The IMO website is a real mess to find such information!
Gura, Turkey has declared to opt out of the compromissory clause, see http://treaties.un.org/pages/UNTSOnline.aspx?id=2. (it is a declaration, and therefor does not appear under “reservations”), and Israel is no party to it at all… Besides all of this, SUA requires an arbitration effort before starting adjucation proceedings.
Remy, Thank you for your responses. One point nonetheless: Israel did ratify the Convention in 2009, but with a reservation to art 16 (I finally managed to understand how the IMO site is working (http://www.imo.org/About/Conventions/StatusOfConventions/Documents/Status%20-%202011.pdf).
Since IMO is the depositary, the UNTC is not updating the Status, but only gives the text of a registered treaty.
The goal of taking this to the ICJ isn’t to get a “binding” opinion. It’s to flood the zone with authoritative-seeming international legal statements that accord to Turkey’s view of the blockade, so the Palmer Report can effectively be washed out as an anomaly. As a legal threat it may be an empty one, but as a PR threat it’s perfectly legitimate, and I think the latter is what Turkey cares about anyway.